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Holland v. Tennyson

Court of Appeals of Georgia
Sep 6, 1991
201 Ga. App. 125 (Ga. Ct. App. 1991)

Opinion

A91A0757.

DECIDED SEPTEMBER 6, 1991.

Action for damages. Dougherty State Court. Before Judge Malone.

Beauchamp Associates, Robert M. Beauchamp, for appellant.

Perry, Walters Lippitt, Nancy G. Grigg, for appellee.


Appellee was served a complaint in which appellant alleged that he suffered damages on December 1, 1989, while exiting a restaurant owned by appellee. Subsequently, appellant recast the complaint and alleged that he suffered damages on December 1, 1989, while existing a mobile home owned by appellee. When appellee failed to file an answer to the complaints, the trial court rendered a default judgment against appellee on the issue of liability and ordered a hearing to determine the issue of damages. After all the evidence had been presented at the hearing, the court, without a jury, granted appellee's motion for a directed verdict on the question of damages because the evidence adduced showed that appellant had sustained injuries on November 30, 1989, rather than December 1, 1989, as stated in appellant's complaints.

Appellant's sole enumeration of error is that the court erred in directing a verdict for appellee on the issue of damages inasmuch as the court had previously entered a default judgment in favor of appellant on the issue of liability. We agree with appellant and reverse. "Due to [her] default [appellee] is in a position of having admitted each and every material allegation of [appellant's] complaint except as to the amount of damages suffered by [appellant]. [Cits.] Defenses which go to the right of recovery are not available to [appellee] in default even though the same defense may also go to the assessment of damages. [Cit.]" Whitby v. Maloy, 150 Ga. App. 575 (1) ( 258 S.E.2d 181) (1979). See OCGA § 9-11-55 (a). Evidence which serves to relieve appellee of liability which she has already admitted by virtue of the default judgment is inadmissible. First Union Nat. Bank of Ga. v. Floyd, 198 Ga. App. 99 (3) ( 400 S.E.2d 393) (1990). See Lee v. Morrison, 138 Ga. App. 332 ( 226 S.E.2d 124) (1976).

Despite the discrepancy in the asserted dates of the accident, the trial court erred in considering evidence which spoke to the liability of the appellee. By the default judgment, appellee's liability for the accident was admitted, and the only issue to be determined by the court was the amount of the damages. Therefore, we reverse the order of the trial court and remand for a hearing on the amount of damages to be awarded to appellant.

Judgment reversed and remanded. Birdsong, P. J., and Pope, J., concur.

DECIDED SEPTEMBER 6, 1991.


Summaries of

Holland v. Tennyson

Court of Appeals of Georgia
Sep 6, 1991
201 Ga. App. 125 (Ga. Ct. App. 1991)
Case details for

Holland v. Tennyson

Case Details

Full title:HOLLAND v. TENNYSON

Court:Court of Appeals of Georgia

Date published: Sep 6, 1991

Citations

201 Ga. App. 125 (Ga. Ct. App. 1991)
410 S.E.2d 447

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